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It was supposed
to be a debate on the Prevention of Terrorism Bill, which sought to ratify
the eponymous ordinance now known universally as poto. Yet the joint parliamentary
session that passed the bill on March 27 (425 ayes to 296 nays) was reduced
to an exchange of acrid accusations. More than discussing the merits of
the proposed Prevention of Terrorism Act (POTA), the combined sitting
of the Lok Sabha and Rajya Sabha was an exercise in political bickering
(see box).
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| FIT CASE: POTA will apply to Jammu and Kashmir,
where terror reigns but not IPC |
But for Brojen Singh and Ibotombi Sapam, 30-somethings from Manipur,
poto was chilling reality. On March 15, less than a fortnight before the
new terror law got legislative approval and poto became pota, the two
were arrested in Delhi’s Kotla Mubarakpur area. Members of the banned
People’s Liberation Army—the militant arm of the Revolutionary
People’s Front of Manipur—Singh and Sapam had been trying to
recruit members from among Manipuri students in Delhi’s universities.
They were found with a revolver, Rs 1 lakh in cash—and a steel grey
Acer laptop, their window, through an Internet connection, to their superiors
back home and in neighbouring countries such as Myanmar and Bangladesh.
Delhi Police had no hesitation in charging the two under poto. Says Rajbir
Singh, assistant commissioner of police (acp), Special Cell, Delhi, “A
strong law like poto is essential to deal with militants like Brojen and
Sapam. They have cross-border contacts, they practically run a state within
a state.”
What Rajbir didn’t say was that his team was confident of convicting
the duo on the basis of intercepts of the e-mails they had sent. Under
the Indian Penal Code (ipc), intercepts of wire, electronic and oral communication
are not admissible as evidence in a court of law. Under poto, they are.
That’s why the new law may be a civil libertarian’s despair
but is a police officer’s dream come true.
The ipc, Law Ministry officials stress, was framed and updated in an era
when terrorism was not the sophisticated transnational enterprise it is
today. pota, say police officials, seeks to redress many of the ipc’s
shortcomings. For instance, the ipc is not applicable in Jammu and Kashmir.
Given that the biggest armed challenge to the Government of India is terrorism
in that state, this seems absurd. pota extends to all of India, including,
obviously, the Kashmir Valley.
Aside from the interception clause, pota gives policing agencies greater
flexibility in terms of proving a crime. Suspects can be kept in police
custody for 30 days, rather than the 15 permitted under the ipc, and witnesses
may give in-camera evidence.
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| REVERSE CASE: Dropping of POTA charges against
Afroz indicates its possible politicisation |
€ Extends
to all of India. In contrast, the IPC does not apply to the state
of Jammu and Kashmir.
€ Police remand can be secured
for 30 days. Under the IPC, police remand can be taken up to 15 days.
€ Chargesheet can be filed
in 180 days. Time limit for filing chargesheet under IPC varies from
60 to 90 days.
€ Confessions admissible
in court if made before a police officer of rank of SP. Under IPC,
confessions before police not admissible.
€ Unlike IPC, admits as evidence
interception of phone calls, e-mail, SMS messages and the like. |
Until now, criminals often confess before the police and then change
their story in court— and walk away free. pota effaces this vulnerability.
Only a confession before a police officer of the rank of superintendent
(SP) or above will be valid in court.
pota has its safeguards. It is to be deployed only in exigencies and stresses
that the investigating officer must be at least a deputy sp or an acp;
under the ipc, a head constable could be an investigating officer. pota
also allows for punishment of investigating officers who misuse its provisions
and have a “malicious intent”.
All this is the theory; the practice, critics fear, may well be another
matter. Says Ashok Arora, leading Delhi-based criminal lawyer: “The
law is fine, it is the implementation that is the problem. In Gujarat
we saw how it was applied against one community.”
Arora is referring to the fact that in the past month the Gujarat Government
slapped charges under poto on those accused of the Godhra massacre, all
of whom were Muslim. Hindu extremists responsible for the retaliatory
anti-minority violence were not similarly charged. The poto charges on
the Godhra accused were later dropped but, to the bjp’s political
foes, the suspicion that the new law was aimed at certain religious groups
stood confirmed.
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| POTA-ED: Manipur militants Singh (left) and
Sapam were caught due to e-mail |
Another example of how casually the Indian crime-fighting system may
take its own lethal law came from Maharashtra, ruled by a Congress-ncp
coalition. Mohammed Afroz Abdul Razak, an Al Qaida associate member, was
arrested in December 2001. On March 1, 2002, after M.N. Singh, Mumbai’s
police commissioner, visited the UK and the US to collect evidence against
him, Afroz was charged under poto. Now Chief Minister Vilasrao Desmukh
of the Congress has dropped the charges. The special prosecutor told the
court that the police had made a mistake in invoking poto and actually
the state-specific Maharashtra Control of Organised Crime Act was enough.
The whispers are that the Congress’ central leadership forced Desmukh’s
hand, given its nationwide opposition to poto.
Irrespective of where the truth lies—political interference or police
error—the fact is the Maharashtra Government, like its Gujarat counterpart,
has handled pota without due rigour. For all the internal strengths of
pota, it is these external factors that will be cause for concern.
—with Sheela Raval
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CURRENT
ISSUE APRIL 8, 2002
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